23andMe Inc.: Patent Law and Lifestyle Genetics

The venture, 23andMe Inc., raises a host of issues in respect of patent law, policy, and practice in respect of lifestyle genetics and personalised medicine. The company observes: “We recognize that the availability of personal genetic information raises important issues at the nexus of ethics, law, and public policy”.

23andMe Inc. has tested the boundaries of patent law, with its patent applications, which cut across information technology, medicine, and biotechnology. The company’s research raises fundamental issues about patentability, especially in light of the litigation in Bilski vKappos, Mayo Collaborative ServicesvPrometheus Laboratories Inc. andAssociation for Molecular PathologyvUnited States Patent and Trademark Office andMyriad Genetics Inc.

There has been much debate and controversy over 23andMe Inc. filing patent applications — particularly in respect of its granted patent on “Polymorphisms associated with Parkinson’s Disease”. The direct-to-consumer marketing of genetic testing by 23andMe Inc. has also raised important questions of bioethics and human rights. It is queried whether the terms of service for 23andMe Inc. provide adequate recognition of the concepts of informed consent and benefit-sharing, especially in light of litigation in this area in the United States.

Given the patent thickets surrounding genetic testing, the case study of 23andMe Inc. also highlights questions about patent infringement and patent exceptions. The future reform of patent law, policy, and practice needs to take into account new developments in lifestyle genetics and personalised medicine — as exemplified by 23andMe Inc.